State v. Stinson

387 S.W.2d 448
CourtCourt of Appeals of Texas
DecidedJanuary 26, 1965
DocketNo. 7617
StatusPublished
Cited by2 cases

This text of 387 S.W.2d 448 (State v. Stinson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stinson, 387 S.W.2d 448 (Tex. Ct. App. 1965).

Opinion

FANNING, Justice.

A condemnation case. The State took for highway purposes 3.195 acres of ap-pellees’ 71 acre farm. The 3.195 acre tract taken contained two valuable springs that flowed into a large cistern covered by a pump house, and out of which cistern spring water for two residences and several pastures on the remainder of the 71 acre tract was provided. Trial was with the aid of a jury. The special issues submitted and the jury’s answers thereto were as follows:

“SPECIAL ISSUE NO. 1.
“What do you find from a preponderance of the evidence was the reasonable market value on the 21 day of December, 1961 of the 3.195 acres of land, including all buildings and improvements thereon, condemned by the State for highway purposes, considered as severed land? Answer in dollars and cents.
ANSWER: $4500.00
“SPECIAL ISSUE NO. 2.
“What do you find from a preponderance of the evidence to be the market value of Defendants’ tract of land, exclusive of the strip of land condemned for highway purposes, immediately before the strip was taken for highway purposes? Answer in dollars and cents.
ANSWER: $36,500.00
“SPECIAL ISSUE NO. 3.
“What do you find from a preponderance of the evidence was the market value of the remainder of the Defendants’ tract of land, exclusive of the strip of land condemned, immediately [450]*450after the strip was taken for highway-purposes? Answer in dollars and cents.
'ANSWER: $20,075.00
“In answering Special Issue No. 3, you will exclude any increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by Defendants in common with the community generally, and not peculiar to them, and connected with their ownership, use any enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the condemned strip is to be subjected.”

Judgment was rendered for appellees in accordance with said verdict after deducting the amount of the special commissioners’ award previously withdrawn by the appellees. The State of Texas has appealed.

Appellant by its first point contends that there is no evidence to support the jury’s answers awarding damages to the remainder of appellees’ lands in an amount greater than $200.00. ($200.00 was the amount of damages to the remainder testified to by one of appellant’s witnesses.) Appel-lees’ first counter-point in reply is as follows:

“Where all witnesses for both land owner and the Condemnor testified fully as to the value of the strip taken and then all witnesses testified as to the value of the ‘remainder’ of the land, there was no error that would, necessitate a reversal of the case because the language ‘exclusive of the strip of land condemned for highway purposes’ was not used in determining the value of the remainder, and especially so since neither party made any objection to the evidence in the. trial of the case nor submission of Special Issues.” . .

Appellees introduced the evidence of witnesses Embrey, Garrett, Cargill, Morris, Blankenship and Joyce Stinson, one of the appellee owners. These witnesses all duly qualified and were permitted to testify as to the values involved. Embrey testified as to the value of the 3.195 acre tract taken, and was then asked the question as to the value of the remainder of the Stinson property “excluding the 3 acres”. Garrett, after testifying as to the value of the 3 acres taken, was then asked as to the value of “the remainder” of the Stinson property as of the date of the taking and the same is true of the witnesses Cargill, Morris, Blankenship and owner witness Joyce Stin-son. Also where the State offered the evidence of its two expert witnesses Brown and Bloodworth, the State’s counsel did not ask these witnesses questions as to the value of defendants’ land “exclusive of the strip of land condemned”. Also the State made no objections to the questions asked by defendants on the ground that these questions as to values were not precisely in the language of the Carpenter case (89 S.W.2d 194).

We think that merely because the value questions asked of the witnesses were not framed in the exact form of the special issues suggested in the Carpenter case that this would not prevent the testimony adduced as to values of the remainder from being deemed evidence of probative force under the record in this cause and especially so in the absence of objection to such testimony. In this connection see Rayburn, Texas Law of Condemnation, Sec. 135, and authorities referred to therein. Also see City of Houston v. Collins, Tex.Civ.App., 310 S.W.2d 697, no writ (1958), wherein it was stated in part as follows:

“Appellant has cited State v. Carpenter, Tex.Com.App., 126 Tex. 604, 89 S.W.2d 194, in support of his.contention. The special issues in this case were framed in the exact form suggested in that case. As we see it, that [451]*451case laid down the law on the framing of the special issues to he submitted to the jury in cases where there is a taking of a part of a tract with resulting damages to the balance, so that there can be no double recovery of damages to the remaining tract. We cannot, however, find any basis in that case for the contention that the court intended to place the landowner in a verbal strait-jacket by having to refer to the land being taken as severed land whenever he referred to it in interrogating a witness about its value.”

The findings of the jury on the issues submitted were within the values testified to by appellees’ witnesses. We overrule appellant’s first point.

Appellant contends by its second and fourth points to the effect that the findings of the jury, when viewed in the light of the evidence, show conclusively that ap-pellees received double damages for the taking of their springs, that the evidence is insufficient to support the jury’s answers to special issues 1, 2 and 3, and that the answers to special issues 1, 2 and 3 are against the great weight and preponderance of the credible evidence in the case.

Appellees, members of the Stinson family, owned approximately 71 acres of land, about 2 miles west of Mt. Pleasant in Titus County, Texas, on the north side of Highway 67. There are two houses on the tract, one large brick house occupied by the mother of Joyce Stinson and a frame house occupied by Joyce Stinson. Stinson is a cattle dealer, owning an interest in a livestock auction business in Mt. Pleasant. In addition to two homes on the tract, and garden, there were two barns, and the 71 acre tract was cut up by fences into several pastures. Stinson would put different classes of cattle in the various pastures for the purpose of showing them to buyers. In one he may have had dairy cows, in another beef cows, in another heifers, and in others various others. In the southeast corner of this 71 acre tract were two very large, strong and valuable springs whose flow had never lessened throughout the years, even in the severest droughts.

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387 S.W.2d 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stinson-texapp-1965.